OP-ED: Why the Roberts Court Might Actually Rule for Workers for a Change This Term

The Supreme Court has not been a good place in recent years for those seeking to use the court system to hold corporations accountable for violating the law and vindicate their own rights in the face of such violations. Since the 1980s, the Supreme Court has been using a law called the Federal Arbitration Act to push people out of the courts and into arbitration, where it’s much easier for businesses to escape liability. The Roberts court—the most pro-corporate court in the modern era—has continued that trend in a series of 5–4 decisions.

But we could see a different result in a case the Supreme Court heard earlier this week—and not simply because the court is lacking the ninth justice necessary to produce a 5–4 outcome. In fact, this case might not be a close one at all.

When the justices cast their votes in this case, there might be some surprising votes in favor of letting the plaintiff have his day in court. While in general the justices on the Supreme Court’s conservative wing are reliably pro-arbitration, many of them are also professed textualists who purport to believe in applying the “law as written.” As Neil Gorsuch asked in his first oral argument as a Supreme Court justice: “Wouldn’t it be a lot easier if we just followed the plain text of the statute?” And in this case, there’s no way to get around that plain text.

The big issue in the case New Prime Inc. v. Oliveira is whether companies can use the Federal Arbitration Act to block truck drivers and other transportation workers they’ve hired from seeking redress in court for the companies’ illegal behavior, simply by classifying those workers as independent contractors. Why would that classification matter? Although the Federal Arbitration Act generally requires courts to enforce agreements to arbitrate disputes, the law makes explicit that it does not apply to any “contracts of employment” of transportation workers involved in interstate commerce. In an effort to get around this language, New Prime argues that independent contractors do not have “contracts of employment” with the company.

When the justices cast their votes in this case, there might be some surprising votes in favor of letting the plaintiff have his day incourt.

At first blush, New Prime’s argument might seem attractive. Today, “employment” often is used to suggest a specific type of legal relationship—an ongoing arrangement in which employees are paid wages or salaries and in which the details of how they perform their work are supervised by their employer. So the word employment might at first seem to exclude independent contractors, as New Prime argues.

But what’s important—particularly to committed textualists—is not what those words mean today, but what they meant when Congress wrote them into law in 1925. As Gorsuch wrote for the court just last term, “words generally should be ‘interpreted as taking their ordinary, contemporary, common meaning … at the time Congress enacted the statute.’” That’s why the justices often look to dictionaries contemporaneous with the words they’re attempting to interpret. In one constitutional case, for example, Justice Thomas’ opinion consulted both legal dictionaries from “around the time of the founding” and “a general dictionary published earlier in the century.”

In this case, that distinction makes all the difference: As we discuss in a brief we filed in the case, the word employment had a different meaning in 1925 than it does today, both in common parlance and in legal discourse. Back then, the word did not refer specifically to an employer-employee relationship but instead was much more general. It covered any arrangement in which a person agreed to perform work in exchange for payment—just as independent contractors do. Indeed, if the justices send their clerks to search out the meaning of employment provided in dictionaries at the time the Federal Arbitration Act was passed, they’ll find numerous dictionaries all defining the word that way.

Against that backdrop, the term “contract of employment” was routinely used to refer to agreements with independent contractors, no less than agreements with individuals who received wages or salaries to perform supervised work. And that is how Congress and the public would have understood the term when it was used in the Federal Arbitration Act.

In fact, if the justices and their clerks keep digging around in those old dictionaries, they’ll find something else interesting. They’ll be able to see precisely how the meanings of terms related to the word employ have changed over time. Today, for example, using the word employee is second nature, but it actually wasn’t used commonly in English until the late 19th century. Before then, more specific and antiquated terms like “servant” and “clerk” were used instead. With the spread of industrialization, however, the more abstract term “employee” became quite useful. As a general term that could be applied across vocations, it was well suited to describe the large work forces laboring in factories, in offices, or in other impersonal settings.

Thus, the type of ongoing, closely supervised arrangement that was once known as a “master-servant” relationship was increasingly called an “employer-employee” relationship. And as this shift took place, it began to influence how other words based on the root employ were used—like the word employment. That is why employment often has narrower connotations today than it did when the Federal Arbitration Act was enacted.

Fortunately, at argument on Wednesday, the members of the court seemed to know exactly which definition of employment is the relevant one. Justice Gorsuch asked New Prime’s attorney early in the argument, “What do we do about the fact that … your colleague on the other side has documented that back in 1925, which is when the statute was enacted, and I think you’d agree that we have to interpret it as a reasonable reader would have at that time, [it] didn’t necessarily distinguish between independent contractors and employees with the degree of care that the law has subsequently come to use?”

Chief Justice Roberts early on also focused on the importance of the definition of employment, observing to New Prime’s lawyer, “You quickly shift the discussion of contracts of employment to whether or not there’s an employee/employer relationship. … The question is not employee/employer. It’s employment.” Meanwhile, when the counsel for the other side took the podium, the justices barely challenged her argument on this issue at all.

The justices’ questions at argument don’t always shed light on how they’re going to rule, but the argument here certainly seemed to suggest that this arbitration case may produce a lot more agreement than most of the court’s arbitration cases do. And that’s a good thing not only for transportation workers who may one day want their day in court, but for everyone who believes that companies should be held accountable when they violate the law.